Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-05
THE SUPREME COURT.
Decisions Rendered at tho Austin Sitting |
YESTERDAY

clerk; NJ. Nj. johnson, bailiff.
Lucy J. Proctor vs.. G. T. Wilcox, exc
cutor, from Bell county; opinion by
Gaines, A. j. This was an original &C
tion for new trial instituted in the court
below by appellant. The suit was brought
at first by appellant for partition of land
and came to trial before the court Octo-
Der Z, 1881, jury being waved. The
court decided against appellant, who
made motion for new trial which was
overruled October 90, 1881. Appellant
then asked and obtained delay of ten
! days in which to make up statement Of
facts and have them signed by the
judge, because the attorney for the
| defendant refused to agree to them.
| The Judge told appellants counsel that
he would be at Waco October 20 and 80,
and at Marlin until November 6. After
several ineffectual attempts to obtain an
! agreement with defendants counsel, the
| statement was mailed to the judge
| November 8 at Marlin, between
which place and Bolton were daily
mails, and it took but q day to
go from one place to the other. On the
I 18th of November statement of facts,
signed by the Judge on the 18th of that
month, was received through the post.
ton for the new trial was de-
INJURED to, and the demurrer sus-
tanned and the cause dismissed.
We do not feel called upon to decide that
an original petition for q new trial can be
entertained in any case upon the ground
that the party aggrieved has been de-
prived. without any fault of his, of an
opportunity to present his case upon ap-
peal. We find only one case where such
a bill has been held good, and in that the
Supreme court of Ohio had original juris-
diction as a court of equity and appellate
Jurisdiction over the court below.
In OVerton VS.. Blum so Tex. 417] it
was refused because the petition did not
show that the plaintiff had been preju-
diced. But if such an action can be
successfully maintained upon any state of
facts the plaintiff must show that he has
been deprived of his right by no
fault of his, and he must be
held to the strictest dill
igence in preparing his case for the higher
court. In the case before us, three weeks
elapsed from the time the Judgment was
rendered until the motion for new trial
was Overruled. The trial had been by the
Judge, and the overruling of the motion
might have been anticipated. Neverthe-
less, after the grant of ten days, did
plaintiff use proper diligence in getting
statement filed? We think not. Plaintiff
should not have trusted to the uncertain
mails in such al important matter, but
have sent an agent. The counsel at
least, should have requested an ans er,
and thus given some kind of a safeguard,
out this was not done. Because the pc
tition does not show proper diligence the
judgment sustaining the demurrer is
affirmed.
Thomas Trammel & Co. VS.. George W.
Mount, from Howard county; opinion
by Willie, G. J. The facts of this case are
as follows: Lawson, Smith & Co. entered
INTO a contract with appellee in which the
latter agreed to build four stone walls for
$4,000, Lawson, Smith & Co. to furnish
him the money as he needed it to carry on
the work. Appellee had provided large
quantity of stone, some of which was used
in the walls and the remainder fully pre-
pared for use, when Lawson, Smith & Co. |
notified appellee that they could not carry /
OutIthe contract This was March s, 1884, !
and on March Is appellants levied an at |
tachment on the lots upon which the walls |
were being built, and they were subse- |
quently sold to satisfy the attachment |
On March "a appellee filed a bill !
of particulars of work done and materials |
furnished and served duplicate on Law
son, Smith & Co. 1t was shown in the |
evidence that about 400 perches of the |
stone included in the bill of particulars
did not enter into the walls and was not |
on the premises, but that it was prepared |
for the use Of the building and left one
and One-half miles from the building.
claimed that appellee had no
lien for this stone, of which there
were 400 perches, the work on
it costing 81 30 per perch. There
this question. First, that the material
of the work to give lien. Second, that
taChes whether used in the work or not,
and third, if the materials are bona fide
contracted for with an honest under
that they are to be used by the
seller in constructing the walls the lien
whether the materials were de-
livered or not. The first line of decisions
seems to proceed upon the idea that q
quasi property remains in the material
man, or upon the principle that the party
who has enhanced the value of the prop
erty by his work should have security
therein. The quasi property idea is a
fiction, and enhancing the value has
nothing to do with it, because lien is
good for work contracted for even if
it is positive injury to the property. In
order to construe the statute on this sub
iect it is not necessary to resort to
lotions. To furnish materials for the
of a building and to furnish
materials which enter into it's construc-
.ion are very different things.
The material man has fulfilled his con-
tract and delivered the material when
they pass from his control and are dealt
with at the option of the owner of the
building. The owner may sell the material
DR. trade it and the material man cannot
This construction of the statute
will give lien in some cases where the
material is not delivered. It may !
be more convenient to have the material ,
somewhere else than on the ground